Boyko v. Speed Mining, LLC

Petitioner
William Boyko, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Speed Mining, LLC, by Steven K. Wellman, its
attorney, filed a timely response.

The
issue on appeal is compensability. The claims administrator
rejected the claim on December 16, 2015. The Office of Judges
affirmed the decision in its May 22, 2017, Order. The Order
was affirmed by the Board of Review on October 24, 2017. The
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds that the Board of Review's decision is
based upon material misstatements and mischaracterizations of
the evidentiary record. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.

Mr.
Boyko, an airway walker, was injured in the course of his
employment on July 13, 2015, when he walked into a roof bolt
and was knocked onto his back. A December 2, 2015, MedExpress
treatment note by Kate Wilks, M.D., indicates Mr. Boyko
reported an injury to his neck. He stated that on July 13,
2015, he walked into a bolt and was knocked onto his back.
This was the first medical evaluation since the incident. Mr.
Boyko reported no history of back problems. He stated that
the pain in his neck had worsened in the past three weeks due
to a change in jobs and more heavy lifting. Cervical and
lumbar x-rays showed degenerative changes. Dr. Wilks
diagnosed lumbar and neck sprains[1].

The
employee's and physician's report of injury completed
on December 2, 2015, indicates Mr. Boyko injured his neck on
July 13, 2015, when he walked into a roof bolt causing the
back of his neck and arm to tingle. The blow knocked him to
the ground but he did not lose consciousness. The diagnoses
were listed as cervical and lumbar sprains. The claims
administrator rejected the claim on December 16, 2015.

In a
January 16, 2016, statement, Randy Boggs, Safety Manager,
indicated that an accident report was on file pertaining to
Mr. Boyko's July 13, 2015, incident. The description of
the accident states that Mr. Boyko was walking out of a
maintenance hole and hit his head on a roof bolt, causing a
neck strain.

On June
7, 2016, Mr. Boyko testified in a deposition that on July 13,
2015, he was walking in a low area when he hit his head on a
roof bolt. The force knocked him onto his back. He felt
tingling in his left arm for thirty to forty seconds. He was
wearing a hard hat at the time. Mr. Boyko stated that there
were two witnesses. He reported the incident to the safety
man, Randy Boggs, and stated that he hurt his neck. Mr. Boyko
asserted that he knew he injured something at the time due to
the tingling in his arm and neck, and he filed an incident
report in case he had further problems. He stated that he
requested a copy of the incident report from Mr. Boggs but
was refused. Instead, Mr. Boggs provided a statement and has
since left the company. Mr. Boyko's counsel noted that he
was unable to obtain a copy of the incident report since the
company went out of business. Mr. Boyko testified that he
missed no work due to the incident and did not seek treatment
until December of 2015. He explained that Speed Mining, LLC,
changed hands and became Black Hawk Mining. He was given a
job with Black Hawk Mining but was unable to perform his new
job duties. He asserted that he requested to be laid off
since he could not do the job. Mr. Boyko stated that he
sustained a second injury on November 20, 2015, to his knees
and lower back but did not file a claim because he thought it
would get better. He sought treatment on December 2, 2015,
for the July 13, 2015, incident as well as the November 20,
2015, incident. At the hospital, he could not remember the
date of his July injury so he called Mr. Boggs, who looked up
the injury report and informed him of the date. Mr. Boyko
admitted that when he made the initial claim at issue, he
accidentally included the lower back.

In a
February 8, 2016, letter Mr. Boyko again asserted that he
contacted the employer on July 13, 2015, and reported the
injury to Randy Boggs. He stated that the injury was
persistent but he kept working. The pain did not subside so
he decided to seek treatment while he was still within the
six month time frame. He asserted that he requested a layoff
from Black Hawk Mining because the new job he was moved to
aggravated his neck, back, and knees.

The
claims administrator rejected the claim on December 16, 2015.
The Office of Judges affirmed the decision in its May 22,
2017, Order. It found that the statement of Mr. Boggs
regarding the incident report filed was persuasive evidence
that Mr. Boyko did in fact file an incident report on July
13, 2015. The Office of Judges determined that the fact that
he did not seek treatment for five months was evidence
against a ruling of compensability even though he sought
treatment within the six month time frame. The Office of
Judges noted that Mr. Boyko visited his treating physician on
two occasions between July 13, 2015, and December 2, 2015,
and did not mention neck pain at either visit. Also, he
alleged that there were two witnesses to the incident but did
not get statements from either person.

Speed
Mining, LLC, argued per West Virginia Code §
23-4-1c(a)(2)(B) (2009) that the fact that Mr. Boyko was laid
off prior to seeking treatment for the alleged July 13, 2015,
injury is evidence that an injury did not occur. The Office
of Judges determined that Mr. Boyko explained in his
testimony that he was aware that layoffs were going to happen
but he was offered a job from Black Hawk Mining. He then
asked to be laid off from that job because his new job duties
aggravated his neck, back, and knees. The Office of Judges
found Mr. Boyko's explanation to be persuasive. However,
the Office of Judges concluded that Mr. Boyko had still
failed to present persuasive evidence in support of his
claim. The lack of objective medical evidence supporting a
work-related cervical spine injury was given great weight.
Further, x-rays of the cervical spine taken on December 2,
2015, showed degenerative changes, which the Office of Judges
reasoned could easily be the cause of his symptoms rather
than an injury five months prior that required no treatment.
The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on October 24, 2017.

After
review, we find that the Board of Review's decision is
based upon material misstatements or mischaracterizations of
the evidentiary record. Mr. Boyko showed by persuasive
evidence that he sustained an injury on July 13, 2015. He
reported the injury to his supervisor and filed an incident
report. He then had six months in which to seek treatment,
and he did, in fact, seek treatment for the injury within
that time frame. He then completed an employee's and
physician's report of injury with the physician's
section filled out by Dr. Wilks indicating Mr. Boyko
sustained a cervical sprain while at work. Mr. Boyko followed
proper protocol for filing a workers' compensation claim
and provided sufficient evidence to show that he sustained a
cervical sprain in the course of his employment.

For the
foregoing reasons, we find that the decision of the Board of
Review is based upon material misstatements and
mischaracterizations of the evidentiary record. Therefore,
the decision of the Board of Review is reversed and remanded
...

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